Cato Policy Analysis No. 229 June 1, 1995

Policy Analysis

The 1995 Crime Bills:
Is the Gop the Party Of Liberty and Limited Government?

by Jarett B. Decker

Jarett B. Decker, a 1990 graduate of the University of Michigan Law School, practices commercial litigation and criminal defense with Maun & Simon in St. Paul, Minnesota.


Executive Summary

The everyday crime that disrupts American life is largely a local problem, best handled by state and local law enforcement agencies. Yet Congress in recent years, in an effort to be seen "doing something" about crime, has been federalizing vast areas of criminal law, creating more regulatory crimes, and spawning a huge prosecutorial bureaucracy.

Unfortunately, the 1995 GOP crime bills introduced in the House and Senate promise more of the same, but with the addition of unprecedented provisions that would threaten freedom and undermine the fair administration of justice.

* The Senate crime bill would vest federal prosecutors with the power to have their opposing counsel indicted, without any finding of misconduct by the court, whenever the prosecutor claims that opposing counsel made a false statement of fact or law in written arguments filed in opposition to the government.

* The Senate bill includes a provision that would exempt federal prosecutors from the rules of legal ethics.

* Both the Senate and the House crime bills would enable federal agents to invade homes, raid businesses, and conduct humiliating body searches without legal justification, while reaping the benefits of evidence collected through such illegal searches.

* The Senate bill would enable federal agents to detain citizens, hold them incommunicado, interrogate them for days or weeks or months, and use any statements extracted during an illegal detention in a subsequent prosecution.

Introduction: The Politics of Federalization

For many decades American politics has been driven by a myth: for every problem, there must be a federal solution. That approach, taken first to social and economic problems, is today followed increasingly with regard to crime. Faced with public frustration over the seemingly intractable problem of crime, both the legislative and the executive branches have claimed that they can solve the problem with more federal legislation, more federal funding, and more federal involvement. It has became an annual rite for Congress to peruse state criminal codes, find a number of repugnant offenses suitable for dramatic public speeches, and draft bills making the offenses federal.(1)

On April 26, 1995, the U.S. Supreme Court put a modest brake on that practice. In United States v. Lopez, the Court held that Congress exceeded its limited constitutional authority to regulate commerce among the states when it enacted legislation making it a federal offense to possess a firearm within 1,000 feet of a school.(2) The law was a perfect example of federal redundancy: over 40 states already have similar criminal statutes on their books, and other states attack the problem of guns at school in different ways.(3) In fact, after the federal legislation was passed by a Democrat-controlled Congress in 1990, President Bush complained that it "inappropriately overrides legitimate state firearms laws with a new and unnecessary federal law."(4) Writing for the Supreme Court, Chief Justice William H. Rehnquist stressed that "[s]tates have historically been sovereign" in the area of criminal law.(5)

According to the New York Times, President Clinton delayed commenting on the Court's ruling for several days and "assured himself wide coverage in large circulation Sunday newspapers and broadcasts."(6) Apparently believing that states are incompetent to handle simple firearms prosecutions involving school property, the president publicly declared, "This Supreme Court decision could condemn more of our children to going to school where there are guns."(7) He instructed Attorney General Janet Reno to find a way around the Court's ruling, such as hinging disbursement of federal education funds on compliance with federal mandates.(8) One commentator compared the president's casting of himself as a "defender of children's health and safety" to the stance he has taken in opposing efforts by the Republican Congress to change the federal school lunch program and to relax environmental regulations.(9) Crime has become steady fodder for politics as usual in Washington.

The Swelling Federal Prosecutorial Bureaucracy

As a result of years of such Washington grandstanding, the American criminal justice system has undergone profound change. We used to have a highly decentralized system. Under a constitutional design that granted no general police power to the federal government, states and localities handled the vast majority of criminal prosecutions, while a small and elite force of federal officials (mostly within the U.S. Department of Justice) took on a select few criminal cases. For the most part, federal power was exercised only when federal interests were implicated: to attack far-flung criminal enterprises operating across state borders; to interdict contraband at the national frontiers; or to punish offenses involving federal officials, federal property, or federal funds.(10)

All that has changed. As Janet Novack noted in a recent article in Forbes,

Since 1980 the U.S. Department of Justice's budget has more than quadrupled. In this period, Justice's payroll has swelled from 53,400 to nearly 98,000, growing 4 1/2 times faster than federal civilian payrolls as a whole. Today there are 4,200 local assistant U.S. Attorneys, 2 1/2 times as many as in 1980.(11)

In addition to shoveling people and funds into the Department of Justice, Democrats and Republicans in Congress have collaborated in relentlessly expanding the federal criminal code. When our nation was founded, there were only three crimes subject to federal jurisdiction: treason, counterfeiting, and piracy on the high seas. Today there are more than 3,000 crimes defined by statute.(12) And it has been estimated that there are some 300,000 federal regulations that can be enforced through criminal sanctions.(13)

Empowered by criminal laws covering almost every facet of social and commercial life, federal prosecutors now exercise unprecedented authority over American businesses and citizens. Virtually every federal regulatory scheme comes equipped with criminal enforcement provisions, whether the regulated activity concerns the environment, the securities industry, employee pension and welfare plans, or employment of immigrants.(14) Federal regulations triggering criminal liability are numerous, complex, and often vague, provoking concerns that the criminal law is being transformed from a scourge for wrongdoers into a trap for the unwary. As one commentator recently noted in connection with the federal environmental laws subject to criminal enforcement, "[T]he web of regulations has grown so dense that many observers believe compliance with the law is unachievable."(15)

Recently, Congress has also enlisted federal prosecutors to busy themselves with a growing range of "street crimes," once the exclusive concern of local law enforcement. Today, carjacking, various firearms offenses, and low-level drug trafficking have been elevated to the federal domain.(16) In the last two sessions of Congress, bills have been introduced in both the House and the Senate that would federalize almost any offense involving the use of a gun.(17) Critics question whether involvement in fighting street crime is an appropriate use of federal resources, given that local prosecutors are better positioned to address crime in their own areas and can do so at less expense to the taxpayer.(18) Sporadic federal prosecutions of street crime have not permitted the states to reduce their own expenditures on enforcement.(19) Nor is there evidence that federal enforcement has reduced crime rates.(20)

Too Much Time on Their Hands

Even with the rapid expansion of federal criminal jurisdiction, the work performed by the Department of Justice has not kept pace with its massive increases in funding and personnel. Federal judge (and former federal prosecutor) J. P. Stadtmueller recently pointed out that "many U.S. Attorney's offices have 25% to 30% deadwood. If these people were in private law firms, they would have been out on the street a long time ago."(21) With too many people and not enough work, everyone simply does less. According to Novack, "[B]etween 1980 and 1991 the number of criminal cases per assistant U.S. attorney dropped 40%; civil filings per attorney fell 38%."(22)

Waste of taxpayer money is not the only issue here, however. An overstaffed prosecutorial agency can be a threat to freedom, moving society in the direction of a police state. In that regard, many recent federal prosecutions seem explicable only as symptoms of a prosecutorial bureaucracy with too much time on its hands. Ponder the following:

* Federal prosecutors recently obtained felony convictions and 21-month prison sentences against a Florida father and son who ran a small land development business. After defending themselves at trial without an attorney, they were convicted of "discharging pollutants into navigable waters" because they had spread clean, unpolluted sand on dry land to prepare a plot for construction. Apparently, Army Corps of Engineers regulations define "navigable waters" so broadly as to encompass dry land and interpret "pollutant" to include uncontaminated fill dirt. After trial, it was revealed that the Corps of Engineers had recommended criminal prosecution based in part on the father's public criticism of the corps' policies, which the corps deemed an effort "to subvert the Corps' Regulatory Program."(23)

* In another recent case, a violent criminal who was secretly on the government payroll as an informant moved in with the estranged wife of one of his relatives. She had just managed to force her husband out because of his physical abuse (the local police would not respond to her complaints of domestic violence). After the government informant became abusive, she made him leave. The informant then asked her to engage in a drug deal. She refused. According to the federal appellate opinion in the case, the informant began a campaign of threats, calling her as many as 10 times a day. He impaled one of her chickens on a stick and left it outside her back door, told her that what had happened to the chicken "could happen to people," mentioned that it would be easy to slit the throats of her horses, and threatened to take her six-year-old son away "so that you will never see him again." The woman finally agreed to the drug deal. She was promptly prosecuted by the local U.S. attorney, who pressed the case all the way to the U.S. Court of Appeals. It was thrown out on grounds of entrapment.(24)

* The U.S. Drug Enforcement Administration (DEA) recently hired an informant to recruit an 18-year-old addict who had checked himself into a drug treatment center to engage in a drug deal. The recovering teenage addict was then successfully prosecuted by the U.S. attorney. An appellate court let the conviction stand, although the court noted in passing that "drug agents' encouraging 18-year-old patients in drug treatment centers to deal drugs is not the most constructive enforcement method."(25)

Despite such evidence that U.S. attorneys may already be overfunded, overstaffed, and overweening, in a recent interview the new chairman of the Senate Judiciary Committee, Sen. Orrin Hatch, maintained that more funds and personnel need to be funneled into the U.S. Department of Justice.

[K]eep in mind [that] from a federal standpoint, we don't have nearly the impact of the criminal element as the states. . . . It seems to me that we have to work to try to get more [federal] prosecutors, more FBI, more DEA, more judges to be able to handle the criminal problems that exist today.(26)

The Demise of Federalism

The increasing intrusion of the federal government into law enforcement violates the principle of federalism, a fundamental tenet of our system of government. The Constitution contemplates that the federal government will be vested with limited powers.(27) Crime control has traditionally fallen within the realm of state sovereignty.(28) Practical as well as constitutional considerations counsel respect for federalism. The recent federalization of criminal law displaces the kind of experimentation at the state level that gives our decentralized system of government its vitality.

Congress has already enacted a comprehensive scheme of federal mandatory minimum sentences--rigid rules for calculating the sentence an offender must receive. That scheme has prompted Chief Justice Rehnquist to note that "these mandatory minimum sentences are perhaps a good example of the law of unintended consequences. There is a respectable body of opinion which believes that these mandatory minimums impose unduly harsh punishment for first-time offenders-- particularly for 'mules' who played only a minor role in a drug distribution scheme."(29) Yet this year's federal crime bills would create even more mandatory minimums for drug and other offenses.(30)

Just as the federal government is preparing to dive deeper into mandatory minimums, the state of New York, which has had more than 20 years' experience with mandatory minimums, appears ready under newly elected Gov. George Pataki to back away from them. New York found that mandatory minimums resulted in squandering scarce and expensive prison space on nonviolent, drug-addicted offenders who could be better handled with nonprison sentences. While prisons were overflowing with low-level drug offenders, there was insufficient space for violent offenders who truly must be kept off the streets for as long as possible. The governor has proposed easing or eliminating mandatory minimums for some categories of cases, and Republicans in the state legislature appear inclined to enact the proposal. Commentators have hailed Governor Pataki's initiative as an act of political courage that will rationalize sentencing policy and free resources to fight violent crime.(31)

But innovations by New York and other states will have little meaning if the federal government continues to usurp the states' role in routine law enforcement. Indeed, it appears that Congress may attempt to control state sentencing policy from Washington and thwart any such experimentation. A bill just passed in the House of Representatives would require the states to adhere to congressionally established sentencing policy as a condition for receiving funds for prison construction.(32) Another bill proposed in the House would create a series of federal mandatory minimum sentences to be tacked onto the punishment already meted out by state judges for crimes involving guns. Already overloaded federal courts would be conscripted to handle a massive new load of cases based on Congress's second-guessing of state sentencing policy.(33) If such trends continue, it is not clear what will be left of the states' traditional authority over criminal justice.

The Lopez ruling may, however, encourage federal courts to assert their authority and slow the federalization of crime. If they do, many federal criminal statutes could fall on straightforward constitutional grounds. In the meantime, Congress should honor its own obligation to preserve federalism through legislative restraint--the same kind of restraint that many in Congress urge judges to exercise by staying within their constitutional boundaries. As commentators have suggested, "[F]air and well-reasoned legislative (first branch) restraint is every bit as critical as fair, well-reasoned, judicial (third branch) restraint."(34)

The Special Powers of Federal Prosecutors

Whatever the wisdom of expanding federal criminal enforcement, it is undeniable that federal prosecutors wield tremendous power, more than ever before. In addition, they operate with fewer restraints than do their colleagues in county district attorneys' offices and generally find it easier to convict the targets they select.(35) Just a few of the reasons follow.

* Federal prosecutors have the vast--indeed, practically unlimited--resources of the federal government at their disposal in putting together their cases against targets. Very few defendants have comparable resources to send an army of investigators all over the country to collect statements or other evidence in their favor.

* While many state prosecutors adhere to an "open file" policy, under which they must disclose to the defense before trial all evidence they have gathered, federal prosecutors have drastically fewer disclosure obligations. In fact, they need not disclose the statements taken from a witness during the investigation phase until after the witness has completed his testimony at trial.(36) Since potential witnesses often feel obliged to speak with federal agents but refuse to give the defense equal time for pretrial interviews, the prosecution frequently enjoys the advantages of "trial by ambush," while the defense suffers a corresponding handicap in trying to rebut the prosecution's case.(37)

* If evidence is insufficient to charge a target, federal prosecutors can purchase testimony with money or with promises of leniency to people who themselves face charges.(38) (Such tactics are less frequently used in most state systems.) Federal prosecutors can often make their desired witness an offer he cannot refuse, since cooperating with the government is usually the only way to escape the harsh penalties of the mandatory minimum sentences and guidelines applicable in federal court.

* In state court, when a number of defendants are charged together, the cases will often be severed to give each defendant a separate trial.(39) Some judges and other legal experts believe that is necessary in many situations to prevent convictions based on guilt by association, since evidence proving the guilt of one defendant may unfairly spill over in the jurors' minds and infect their judgment of a codefendant.(40) However, in federal court there is an almost irrebuttable legal presumption in favor of joint trials whenever there are multiple defendants.(41)

Federal prosecutors often tackle difficult and complex cases, and they should be given the wherewithal to do their job, but the power and resources now at their disposal can easily be used to overwhelm a target, regardless of his guilt or innocence. Consider the following examples:

* Federal prosecutors recently brought criminal charges in different courts at opposite ends of the country against the same adult entertainment business. A federal court of appeals found that the government's intention was to exhaust the defense's resources and force capitulation through a war of attrition (using its own limitless resources, courtesy of the taxpayers).(42)

* Federal prosecutors have pushed the practice of joint trials of multiple defendants to its extreme through repeated use of what has been dubbed the "RICO megatrial."(43) Under the broad and draconian provisions of the Racketeer Influenced and Corrupt Organizations statute, 21 defendants were recently put on trial together in a New York federal court. The trial lasted 17 months, included testimony from some 275 witnesses, and generated 40,000 pages of transcript. At the conclusion of that evidentiary overload, the jury convicted nearly everyone in sight.(44)

* In a number of recent cases, it has been revealed that federal law enforcement officials are paying their informants contingency fees: informants collect only if their cooperation results in successful prosecutions or forfeitures.(45) A noted authority on legal ethics has observed that prosecutors who offer such inducements "are doubtless engaged in enterprises that would be unlawful for nongovernment lawyers and that are troublesome because they plainly risk influencing testimony in return for rewards."(46)

In contemplating the 1995 GOP crime bills, it is wise to be mindful of the power and resources federal prosecutors already command. The GOP proposals would further expand their authority, restrict the judiciary's power to restrain prosecutorial abuse, and dilute the protections of the Bill of Rights. Lawmakers and citizens should heed Lord Acton, who observed that "power tends to corrupt, and absolute power corrupts absolutely."(47)

"False Pleadings": An Assault on the Right to Counsel

The GOP crime bill pending in the Senate would weaken the protections of the Sixth Amendment to the U.S. Constitution. That amendment sets forth the most important elements of a fair criminal trial. Included in the original Bill of Rights of 1791, it represents the collective wisdom and historical memory of the Framers. They sought to ensure that the United States would never know an institution such as the Star Chamber, a notorious secret tribunal of 16th- and 17th-century England used to dispatch the Crown's enemies without due process.

In remarkably simple and terse language, the Sixth Amendment provides the basic tools the accused will need to challenge the government's claims against him, to tell his own side of the story, and to ensure that those who decide his fate will be fair and independent from the sovereign. It says,

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an impartial jury . . . and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Of all those protections, the right to counsel has assumed particular importance, especially in federal prosecutions, where the governing laws have become so numerous and complex. The owner of a small business accused of an environmental crime may need the assistance of sophisticated counsel just to decipher the indictment that purports to inform him of the "nature and cause of the accusation"--an indictment teeming with citations to obscure regulations and opaque statutes. He will require a well-versed lawyer to have any luck "confronting" (that is, cross-examining) the witnesses testifying against him, especially when they include experts from the regulatory agency rendering opinions on the scope of the laws and regulations he is accused of violating. He will have to rely on a seasoned attorney to marshal witnesses and evidence in his defense. At closing argument, he will need an eloquent advocate to make the jurors feel the weight of their responsibility and embolden them to say no to the government when it has overreached. Truly, the right to counsel is the vehicle for vindicating all other rights.

The Senate bill contains a provision that would seriously undermine the right to counsel--and with it the other rights that depend on vigorous representation--although in ways that may not be immediately obvious. Section 501 of the bill would create a new offense, called "false pleadings," making it a federal crime for an attorney involved in a criminal case to "fil[e] in a court of the United States a brief, motion, answer, pleading, or other signed document that the attorney knows to contain a false statement of material fact or a false statement of law."

Clearly, it is unacceptable for attorneys to misrepresent facts or law in their court filings. But under existing rules and procedures, federal judges already have full authority to punish attorneys who do so, and it is the judge who makes the call on whether an attorney has crossed the line. If the judge finds misconduct, he can find the attorney in contempt of court and fine him or impose a jail term on him.(48) Alternatively, the judge can suspend the attorney from practice before the federal courts, or bar him forever.(49) Finally, the judge can refer the attorney for discipline before the appropriate state board of professional responsibility.(50)

The false pleadings provision would take federal judges out of the loop, displacing their authority to police the conduct of counsel. Instead, federal prosecutors would be empowered to obtain an indictment against their opposing counsel for allegedly making false statements of law or fact, without any finding of misconduct by the judge. As a practical matter, the new provision would likely be applied only against defense counsel, not against federal prosecutors, since it is federal prosecutors themselves who would have exclusive authority to decide when such charges should be brought.(51)

Criminalizing Legal Advocacy

The false pleadings provision is especially misguided because it would threaten attorneys with prison for making "false statements of law." In our adversarial system of justice, when two attorneys contest an issue before a judge, they frequently make mutually contradictory statements of law--typically based on prior cases that conflict with each other or legal rules that can be read more than one way. As advocates, attorneys are expected not only to portray existing law in the light most favorable to their clients but also to make good faith arguments for changes or extensions of the law.

The law matures and develops as judges decide whether such arguments are "correct" or "false." As they resolve legal disputes, judges themselves are frequently found "guilty" of making false statements of law when their opinions are reversed by a higher court. It is simply astonishing to suggest that an attorney should face criminal charges for making a false statement of law--even more so where the charging decision would be vested in opposing counsel in the midst of often heated criminal litigation.

If the false pleadings provision had been in force, the

lawyer who argued and very recently won United States v. Lopez--the case holding that the commerce clause does not authorize federal legislation over local criminal matters-- could have easily been indicted. His arguments contravened the common understanding among lawyers--following 60 years of Supreme Court precedent and the black letter constitutional law that all law students "know"--that the commerce clause permits Congress to regulate essentially any area of activity.(52) It could have easily been argued that Lopez's lawyer "knowingly made a false statement of law" in his written pleadings invoking the limits on Congress's power, thus making him subject to criminal prosecution. Yet in the end, he was right.

An attorney charged with the crime of false pleadings would have a right to trial by jury. If the charges were based on an alleged "false statement of law," jurors with no legal training would have to determine the law's correct interpretation to decide the guilt or innocence of the accused. That bizarre prospect further illustrates why the authority to police attorneys' conduct should remain in the hands of federal judges.

Echoes from the Star Chamber

The false pleadings provision creates a staggering potential for abuse. The great majority of federal prosecutors are people of integrity and good intentions, but our system of justice must be equipped to restrain the small minority who would misuse their authority. The false pleadings provision would create a mechanism for subtle--or even blatant--intimidation of defense counsel. Defense attorneys could be led to believe that if they "make trouble" for the prosecution through zealous advocacy, they may face an indictment based on their court filings. Even the most fearless among them could be subdued. Indeed, the mere existence of the law would have a profound chilling effect on attorneys' representation of their clients, even in circumstances where the prosecutor does not intend any threat.

In the context of federal prosecutions, which now so

often involve complex regulatory issues, enactment of the false pleadings provision would likely stifle challenges to the government's interpretation of the law.(53) The federal regulations that can be criminally enforced are so numerous and vague that often no one is certain what they mean or when they apply.(54) What lawyer will leap into the fray and aggressively present an interpretation that might exonerate his client if the price for being deemed wrong by opposing counsel may be loss of his profession, public branding as a criminal, even imprisonment? When the prosecutorial juggernaut is unleashed, its targets could find themselves standing alone, unshielded by counsel.

The false pleadings provision has a notable precedent in Anglo-American legal history that illustrates its potential as an instrument of oppression. The Star Chamber of 16th- and 17th-century England imposed criminal sanctions nearly identical to those proposed in the Senate bill to keep defense counsel subservient to the Royal prerogative.

The proceedings before the Star Chamber began by a Bill "engrossed in parchment and filed with the clerk of the court." It must, like other pleadings, be signed by counsel. . . . However, counsel were obliged to be careful what they signed. If they put their hands to merely frivolous pleas, or otherwise misbehaved themselves in the conduct of their cases, they were liable to rebuke, suspension, or imprisonment. Counsel, therefore, had to be cautious that any pleadings they signed would not unduly offend the Crown.(55)

One unfortunate target of the Star Chamber's inquiries, a Presbyterian named William Prynne, was accused of publishing seditious pamphlets. No lawyer would dare sign the pleadings in his defense. As a result, Prynne found himself standing at the pillory with both his ears cut off and his cheeks branded with the letters "S.L."--for seditious libeler--before beginning his sentence of life imprisonment.(56)

There can be little doubt that if enacted, the false pleadings provision would lead to miscarriages of justice. Even now, while lacking such a powerful weapon, some federal prosecutors use their authority in ways that strongly suggest an effort to intimidate or eliminate their most effective adversaries. Just two recent examples:

* Federal prosecutors from Reno, Nevada, released a major drug smuggler from jail, allowed him to continue using $10 million in forfeitable drug profits, and promised him leniency at sentencing to induce him to testify that his defense attorney, Patrick Hallinan, had joined in his conspiracy. There was no evidence to corroborate the testimony purchased against Hallinan, a respected attorney and zealous advocate who had handed federal prosecutors several high-profile defeats. On March 7, 1995, having endured a lengthy investigation and a grueling six-week trial, the 60-year-old Hallinan was acquitted after 40 minutes of jury deliberations.(57)

* Federal prosecutors in Milwaukee recently initiated a criminal investigation of a respected attorney (and former federal prosecutor) based on nothing more than his routine and appropriate representation of a business client suspected of fraud. According to the federal court of appeals, "[A]lthough the investigation produced zero evidence or leads to evidence of illegal conduct, it dragged on for two years." As a result, the lawyer had to abandon representation of his client to defend himself.(58)

As a federal judge recently noted, "[O]ne of the lawyer's most noble responsibilities is to protect the individual against Government excesses"; in a free society, "[t]he lawyer must stand independently and resolutely when he or she believes the government is wrong. And on occasion it requires enormous courage."(59) It is one thing to hope lawyers will be courageous; it is quite another to ask them to fight zealously for the rights of their clients in a system where their own reputations, livelihoods, and freedom would hinge on the discretion of their government adversaries. Who will challenge the government then? The false pleadings provision is deeply misguided and utterly incompatible with our adversarial system of justice.

Federal Prosecutors as a "Special Class"

The Senate crime bill also contains a provision that would exempt federal prosecutors from the rules of legal ethics, making them a "special class"--the only lawyers not accountable under the standards adopted by federal courts and state disciplinary boards to govern attorneys' conduct. The rules of legal ethics are a comprehensive code--varying slightly from one jurisdiction to another but in principle the same for all American lawyers--that establishes standards of fair play. Typically, the supreme court of each state promulgates ethical rules, revises them from time to time, and reviews the disciplinary process of the agency charged with punishing lawyers who have gone astray.(60)

The rules of ethics are designed to preserve the integrity of the legal process and promote fairness; they prevent "those advocates embroiled in the heated conflicts of the day from losing focus on the long-term direction and purpose of the law."(61) For example, opposing lawyers may not contact individuals whom they know are represented by counsel without counsel's permission; that rule protects the integrity of the legal process.(62) During the course of representation, lawyers must promote their clients' interests, not their own.(63) Likewise, lawyers must tell the truth to each other, to judges, and to juries.(64) All attorneys engaged in the practice of law are currently subject to such rules.

Traditionally, it has been accepted that prosecutors have greater, not fewer, ethical obligations than attorneys in private practice. While private counsel may single- mindedly represent the interests of his client (within the boundaries of the rules), a prosecutor is uniquely charged with an affirmative duty to ensure that justice is done. A federal judge recently put it this way:

Recognizing a Government lawyer's role as a shepherd of justice, we must not forget that the authority of the Government lawyer does not arise from any right of the Government, but from power entrusted to the Government. When a Government lawyer, with enormous resources at his or her disposal, abuses this power and ignores ethical standards, he or she not only undermines the public trust, but inflicts damage beyond calculation to our system of justice.(65)

A Narrow Problem, A Judicial Solution

Federal prosecutors have recently claimed that one ethical rule in particular--the rule prohibiting direct contacts with a represented party in the absence of his lawyer--should not apply to them because of unique problems they face when investigating organized crime. To crack a criminal syndicate, prosecutors may need to persuade one of its members to cooperate with the government and testify against his confederates, perhaps in exchange for leniency at his own sentencing. But an organized crime boss may retain "house counsel" to represent all of his underlings, selecting attorneys who can be trusted to keep him informed of any government offers for cooperation. If federal prosecutors are forced to comply with the ethical rule by communicating only through defense counsel, so the argument goes, they compromise their chances of successfully "rolling" a member of the syndicate and may put their prospective witness at risk of reprisal.(66)

The problem is more imagined than real. While the mafia and their consiglieri appear often in novels and movies, they have little to do with the everyday grist of the federal criminal justice system. The scenario proffered by prosecutors would involve an extremely rare situation in which the attorney for the prospective witness was not functioning as a lawyer at all but rather as an active member of the conspiracy, serving the interests of the crime boss rather than those of his purported client, in violation of his own ethical duties.

The existing rules provide a simple solution for that unusual but interesting problem. A federal prosecutor can go to court and seek an order exempting him from the ethical rule for purposes of the case at hand and that case alone. If the government can make a satisfactory showing that the defense attorney for an underling might actually be the puppet of a crime boss, the court has the authority to permit direct contacts with the prospective witness, in the absence of his attorney.(67) Because the authority to make that determination rests with the judge--a disinterested party--the chances for abuse are substantially reduced.

Federal prosecutors, however, have been trying for several years to cut judges out of the picture. In 1989 then-attorney general Richard Thornburgh published a highly controversial memorandum describing the rule against direct contacts with a represented party as "a substantial burden on law enforcement" and purporting to allow federal prosecutors to make such contacts whenever they see fit, regardless of any contrary ethical rules.(68) Attorney General Reno has embraced a similar exemption for federal prosecutors, although the Reno policy does place some restrictions on contacts with a represented person who has already been formally charged.(69)

The Thornburgh memorandum and its progeny have been given a chilly reception in the federal courts, to say the least. One federal district judge described the claim of prosecutorial exemption as "ironic," "insolent," and "irresponsible."(70) A federal appellate court likewise made it clear that it had no patience for the government's claim, noting that in the case before it "the government, on appeal, has prudently dropped its dependence on the Thornburgh memorandum in justifying [a federal prosecutor's] conduct, and has thereby spared us the need of reiterating . . . the inefficacy of the Attorney General's policy statement."(71)

The Thornburgh memorandum has already led to predictable abuses. A California federal prosecutor, for example, recently "assumed" (without any evidence and contrary to what a cooperating attorney on the case was told) that the lawyer for a defendant whose cooperation he sought was in the pocket of a crime boss; the prosecutor then misrepresented the situation to a judge and arranged talks with the defendant without the defendant's lawyer's knowledge. The lawyer, a respected member of the California bar with no ties to organized crime, withdrew from representation on learning of the secret contacts.(72)

The Senate bill would codify into federal law the Thornburgh memorandum allowing direct contacts with represented parties, thus ensuring that federal judges would have no opportunity to monitor the practice. But it goes much further. It would exempt federal prosecutors entirely from all outside ethical rules. That extraordinary "solution" goes far beyond any problem that any federal prosecutor has claimed to find with the rules of ethics.

Federal Judges Lose General Disciplinary Power

As the federal prosecutorial bureaucracy grows larger and more powerful each year, the need for ethical monitoring becomes more critical. Federal appellate judge Richard Posner has observed, "The increase in the number of federal prosecutors in recent years has brought in its train problems of quality control."(73) Abuses like the following are why we have ethical rules in the first place.

In 1987 federal prosecutors and agents from Los Angeles and San Francisco cut a deal with a private attorney who agreed to secretly assist in building a case against his own client. Through some complicated arrangements, the attorney stood to gain vast sums of money from his client's prosecution; federal prosecutors helped him conceal his betrayal. A federal judge concluded that the government's misconduct "robbed the defendant of his right to effective assistance of counsel and his right to due process of law" and "also displayed a complete disregard for the professional duty attorneys owe to their clients and for the ethical obligations prosecutors have as officers of the court." The judge also found that at least one federal official committed perjury at the hearing in which the misconduct was uncovered.(74)

The Senate bill would strip federal judges of much of their power to punish such abuses. Under existing law, federal judges are usually empowered to discipline attorneys who appear before them under the local rules of the U.S. district court. Local rules set forth the specific standards and procedures adopted by the judges of each federal district to govern business in their court. Local rules cover a wide variety of miscellaneous topics such as page limits on court papers, deadlines for filings, and the like. Typically, the local rules also adopt the rules of ethics promulgated by the supreme court of the state in which the federal court is located.(75) If the ethical rules are violated, federal judges can suspend or bar the offender from federal practice, refer him to the state disciplinary board for punishment, or impose a fine or jail time based on the court's contempt powers.

The Senate bill provides that "notwithstanding the ethical rules or the rules of the court of any state, Federal rules of conduct adopted by the Attorney General shall govern the conduct of prosecutions in the courts of the United States."(76) The proposal would simply knock out the ethical standards promulgated by state supreme courts and adopted by local rule in federal courts, at least insofar as federal prosecutors are concerned. Thus, the Department of Justice would be vested with authority to make up its own rules and enforce them, at its discretion, on its attorneys. Government attorneys would be exempt from all ethical monitoring by outside parties.

The exemption from ethical standards would apply only to "prosecutions"; thus defense lawyers would remain covered by existing standards. Prosecutors and defense lawyers on the same case, sitting at opposite sides of the same courtroom, would be playing according to different ethical "rule books"--and only the defense would be subject to the court's authority on ethical matters.

Ironically, when it was pointed out in a recent interview that the playing field between defense lawyers and prosecutors already favors the prosecution (because of the government's superior resources), the cosponsor of the proposed ethical exemption for federal prosecutors, Senator Hatch, acknowledged the problem and asserted that judges must assume responsibility to ensure that the defendant's rights are respected.

Well, it [the playing field] isn't even. . . . I think what we have to do is have judges who are fair and really are concerned about justice in America. That could go a long way toward helping trials to be fair.(77)

It is unclear how stripping federal judges of their power to police the ethics of prosecutors could help them fulfill their responsibility to make trials fair or in any way alleviate the unevenness of the playing field.

Lax Internal Monitoring

In addition to the outside ethical monitoring that the Senate bill would eliminate, federal prosecutors are currently subject to internal policing on two separate levels: through supervision by their bosses in their local U.S. Attorney's Office and by the central Office of Professional Responsibility (OPR) at the Department of Justice headquarters in Washington. Federal judges and other authorities have found internal policing on both levels to be inadequate.

In reviewing a recent case in which an assistant U.S. attorney concealed evidence requested by the defense and then lied about it to opposing counsel, the judge, and the jury, a federal court of appeals concluded that his superiors in the U.S. Attorney's Office seemingly tried to cover up the misconduct rather than rectify it.

Troubled as we are by the prosecutor's conduct, we're more troubled still by the lack of supervision and control exercised by those above him. . . . How can it be that a serious claim of prosecutorial misconduct remains unresolved--even unaddressed--until oral argument in the Court of Appeals? Surely when such a claim is raised, we can expect that someone in the U.S. Attorney's Office will take an independent, objective look at the issue. . . . Yet the United States Attorney allowed the filing of a brief in our court that did not own up to the problem, a brief that itself skated perilously close to misrepresentation.(78)

Similarly, in 1990 the Congressional Committee on Government Operations investigated the effectiveness of OPR in punishing prosecutorial misconduct. As a test, the committee carefully reviewed 10 cases in which federal judges had already found "very severe" misconduct. A commentator summarizes the results:

The Committee, after pulling DOJ's teeth for more than five months to obtain the requested information, finally learned that five of the ten cases were "administratively determined not to involve conduct sufficiently serious to warrant disciplinary action, and were not referred" to OPR. Of the remaining five cases that were referred to OPR, "[t]hree of these were determined after further investigation not to warrant disciplinary action, and two remain open in the OPR." The Committee concluded that "[t]he long delay, repeated findings of no misconduct, and the Department's failure to explain its disagreements with findings of misconduct by the Courts raised serious questions regarding what the Department considers 'prosecutorial misconduct.'"(79)

If the proposed ethical exemption for federal prosecutors becomes law, the moribund OPR will be the only forum for seeking recourse against prosecutorial misconduct. Yet victims of misconduct should think twice before going there for relief. Houston defense lawyer Kent Schaffer recently asked OPR to review the conduct of a federal prosecutor in a money-laundering case. The prosecutor promptly sued him for libel.(80)

If federal prosecutors are exempted from all outside ethical monitoring, they may become unaccountable--indeed, untouchable. In a recent opinion rejecting the notion that federal prosecutors should be exempt from ethical rules, a federal district court noted,

The profession of the law, in its nature the noblest and most beneficial to mankind, is in its abuse and abasement the most sordid and pernicious.(81)

No lawyer should be above the law, least of all one who wields the power of a modern federal prosecutor.

A Green Light for Government Lawlessness

Bills have been introduced in both the House and the Senate that would weaken the constitutional protection against government invasions of private homes, raids on businesses, and detentions of citizens in the course of criminal investigations.(82) The Fourth Amendment to the U.S. Constitution preserves "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." That protection is essential to preserve rights to private property and personal dignity. It vindicates the most basic civil right of American citizens: the right to be left alone by the government, unless there is good reason justifying an intrusion.

The provisions weakening Fourth Amendment protections come at an especially troublesome time, when there is evidence that law enforcement agents are increasingly flouting the constitutional restrictions on searches and seizures.(83) Part of the impetus for the apparent wave of government lawlessness comes from forfeiture laws, which allow government agents to seize and keep, for their agencies and sometimes for their own benefit, property that is allegedly connected with criminal activity. As Rep. Henry Hyde explains in his new book on the subject, those laws have at times transformed law enforcement agents into bounty hunters.(84)

Whatever their cause, abuses like the following demonstrate the need for effective restrictions on searches and seizures.

* In the middle of the night on August 25, 1992, heavily armed DEA and U.S. Customs agents raided the home of Donald L. Carlson, a family man and vice president of a Fortune 500 company. The agents smashed through his front door and lobbed a percussion grenade into the house. Thinking he was being burglarized, Carlson pulled out his gun. Shots were fired, and Carlson was hit three times, landing him in a hospital intensive care unit for six weeks. Carlson's neighbors heard one departing agent tell another, "Now get the story straight. He shot first." No drugs were found at Carlson's home; the raid was conducted on the basis of the word of a paid informant who had previously been dismissed from a federal anti-drug program for filing false reports. As a result of his wounds, Carlson will suffer diaphragm paralysis, circulatory problems, and chronic pain for the rest of his life. None of the federal agents has been disciplined.(85)

* On the morning of October 2, 1992, a 30-man task force including DEA and National Park Service agents broke into the home of 61-year-old Donald Scott. Half- asleep and startled, Scott emerged from his bedroom with his gun in hand. The agents shot him dead. No contraband was found anywhere on his 200-acre ranch. It was later revealed that the raid was motivated by the agents' interest in taking the ranch through the forfeiture laws if drugs could be found there. Rumors of drug use by Scott's wife were enough to convince the agents that something might turn up. The agents had even obtained an appraisal of the property before the raid (it was worth $5 million).(86)

The Senate and House bills would only encourage that kind of misconduct by allowing evidence obtained by illegal searches to be used by the government in federal prosecutions. The Senate bill would eliminate outright the "exclusionary rule" that the U.S. Supreme Court first adopted for federal courts in 1914 by way of enforcing the Fourth Amendment guarantee.(87) (The rule, in most cases, prohibits the use in court of evidence found through an unconstitutional search.)(88) Under the Senate bill, evidence from an illegal search would be admissible no matter how egregious the government misconduct. The slightly less drastic House bill would allow evidence from an illegal search to be used, but only if the investigating agent could show that he had a reasonable belief that the search was legal.

A fundamental problem with those provisions is the message they send to federal agents. Law enforcement is a competitive enterprise. Advancement and recognition come from successfully building a case. If habitually breaking the rules brings the occasional success, there are those who will be willing to play that way. How can agents in the field be expected to take the Fourth Amendment seriously in their work if even the institutional guardians of the Constitution--federal courts--give them an implicit nod and wink by allowing the tainted fruit of illegal searches to be used in the courtroom? The exclusionary rule promotes respect for the Fourth Amendment in the most direct manner possible, by removing the incentive for violating it.

Fourth Amendment Flexibility

The justification for eliminating the exclusionary rule is that exclusion of illegally obtained evidence allows scores of guilty criminals to go free and ties the hands of law enforcement. The facts simply do not support that contention. Even before the Rehnquist Court, which has dramatically loosened the strictures of the Fourth Amendment, a report to Congress on federal criminal cases revealed that the exclusionary rule resulted in exclusion of evidence in only about 1.3 percent of the cases surveyed, and the exclusion resulted in acquittal or dismissal in only 0.7 percent of those cases.(89)

The Fourth Amendment has been interpreted very flexibly to allow law enforcement officials wide discretion in conducting searches. "Probable cause"--the level of justification sometimes required for the search of a home, a business, or a person's body--has been defined by the courts as simply the amount of factual justification, based on "common sense," that would lead one to believe there is a "fair probability" that contraband or evidence of a crime will be found through a search.(90) A Fourth Amendment violation cannot be based on some unreasonable or hypertechnical interpretation of the law that officers in the field could not be expected to understand.

There are now many broad exceptions to the probable cause rule that allow searches even without that minimal level of justification. For example, relatively brief "stop-and-frisk" searches of the body, "inventory searches" of impounded vehicles or goods, and "regulatory searches" of businesses can now be conducted without probable cause.(91) Federal courts that have long been dominated by judges appointed by Presidents Reagan and Bush have interpreted the Fourth Amendment to give maximum latitude to the government.

Courts today, particularly in the federal system, will not find a Fourth Amendment violation except in the most extraordinary circumstances, when government agents have seriously infringed on a citizen's reasonable expectations of privacy without good cause. The exclusionary rule deters abuses, not legitimate law enforcement.

Damage Suits Ineffective

As a replacement for the exclusionary rule, the Senate bill would allow victims of Fourth Amendment violations to sue the federal government for damages. Recovery would be allowed for property damage or bodily injury resulting from an illegal search or seizure. The victim could also recover up to $10,000 in punitive damages, depending on the seriousness of government misconduct. Total recovery is capped at $30,000, unless actual physical or property damage exceeds that amount.(92)

Under the Senate bill's tort remedy, Donald Carlson-- whose home was invaded and grenaded in the middle of the night, who was shot three times, spent six weeks in intensive care at the hospital, and is left with lifelong disabilities--would be able to recover for his doctor bills, as well as the cost of fixing his front door and filling the bullet holes in his walls. He would not be able to recover any punitive damages, since his doctor bills would certainly have exceeded $30,000, and any claim for more than $30,000 in actual damages renders the victim ineligible for punitive damages under the bill. Critics of the tort remedy argue that it would be an insufficient and ineffective response to government abuses.(93)

Proponents of the tort remedy also apparently recognize that it would not be as effective in deterring Fourth Amendment violations as is the exclusionary rule. After all, the ostensible rationale for eliminating the exclusionary rule is that it hampers law enforcement and allows the guilty to go free. But if the tort remedy would truly deter violations just as effectively, law enforcement officers would be equally hampered and the guilty would still go free. Their concern is thus not with respecting Fourth Amendment rights but with enhancing police power.

Eliminating Individual Responsibility

One reason why the tort remedy would not deter abuses by law enforcement personnel is that it does not punish agents who break the law. Instead, it punishes taxpayers. In fact, the Senate bill would eliminate the existing legal mechanism for holding federal agents individually responsible for their transgressions.

The U.S. Supreme Court has already created a tort remedy, called a Bivens action in honor of the case in which it was developed, that allows private citizens to sue federal agents directly for illegal searches and seizures.(94) By contrast, the Senate bill states that "[t]he remedy against the United States provided under this chapter shall be the exclusive civil remedy for a violation of the Fourth Amendment to the Constitution."(95) That provision would bar Bivens actions.

Thus, taxpayers would foot the bill for government abuse, while government agents, no matter how egregious their misconduct, would be relieved of any financial accountability for their wrongdoing. That is a further nod and wink, assuring federal agents that they need not take the Fourth Amendment seriously.

An Incentive to Aggravate Abuses

While the tort remedy has been proposed to give the government as a whole some incentive to obey the Fourth Amendment, it could create perverse incentives for government agents to aggravate the injuries inflicted on victims of illegal searches. The proposed tort remedy would drastically limit the amount of compensatory damages recoverable by "a person who is convicted of an offense for which evidence of the offense was seized in violation of the Fourth Amendment," unless he suffered actual physical injury or property damage, and then recovery would be restricted to the actual losses. It is hardly likely that significant punitive damages would be awarded to anyone convicted as a result of evidence seized in an illegal search.

Thus, in most cases, the government will be more or less off the hook for an illegal search as long as the victim is convicted of something. If agents illegally invade a home and discover that the evidence they were expecting to find is not there (for example, because their paid informant lied), their incentive will be to ransack the house in hopes of finding something--anything--to use in bringing charges.

That is not a fanciful scenario. In fact, it seems to be precisely what happened in the famous U.S. Supreme Court case in which the exclusionary rule was first held to apply in all courts, Mapp v. Ohio.(96) In that case, law enforcement officers illegally broke into a home looking for evidence related to a bombing; handcuffed the woman who lived there; dragged her up to her bedroom; and then went through her closets, drawers, suitcases, and a trunk. They found no evidence relating to any bombing, but apparently they did find a dirty magazine. The woman was prosecuted for possession of obscene materials.(97)

With 3,000 criminal statutes and 300,000 criminally enforceable regulations at their disposal, intelligent federal prosecutors and agents should be able to find some basis for bringing charges after a botched raid, even against the cleanest victim of an illegal search. The Senate's proposed tort remedy not only would be ineffective in deterring violations of the Fourth Amendment but could actually encourage them.

Arbitrary Searches as a Government "Right"

There is a more fundamental problem with supplanting the exclusionary rule with a tort remedy. It would effectively transform the Fourth Amendment from a prohibition on government intrusions to a "just compensation" clause.(98) To illustrate the point, the government currently has a "right"--on behalf of society as a whole--to block the entrance to a store while widening the highway in front of it, as long as it pays the store owner for the temporary taking of his property.(99) But in the absence of a warrant supported by probable cause, the government has no "right" to invade a private home in the middle of the night; force the family living there to lie spread-eagle on the floor at gunpoint; and then rummage through their closets, drawers, purses, and diaries.

By replacing the exclusionary rule with a tort remedy, the Senate bill would put the two intrusions on the same footing. If federal agents find that arbitrary and routine searches of private homes are the easiest way to net criminals, the Senate bill would allow them to conduct their business that way. They would have to pay innocent victims of illegal searches as a routine cost of doing business. But the Senate bill ensures that the cost will be predictable and manageable--never more than $10,000, as long as the agents take care not to break anything or hurt anybody.

The Senate bill thus offers to rewrite the implicit contract between American citizens and their government embodied in the Constitution. Under the new contract, citizens would effectively give the government the keys to their homes and open access to their belongings. Submitting to random raids could become an accepted burden of citizenship, just as putting up with temporary takings is now a routine intrusion that property owners are expected to tolerate for the benefit of our system of public roads, as long as their out-of-pocket losses are compensated. For citizens who are really put out by an illegal search, the government also magnanimously offers a few thousand dollars (no more than 10) for their trouble.

In considering that proposed revision of our rights and liberties, Americans should have no illusions about what federal searches actually involve. A federal judge describes the recent search of Steve McElroy and Fred Griesbach, two Texans who were never suspected of any wrongdoing but unfortunately lived in a duplex next door to an alleged drug dealer named Rodriguez who caught the attention of a task force run by the DEA with assistance from local officers.

McElroy awoke that morning [at 6:00 a.m.] to the terrifying sounds of crashing and screaming in Rodriguez's apartment next door. His first thought was that his neighbors were being murdered and he would have to get out of the duplex to save his own life. He looked down from the window of his bedroom loft and saw a flashlight shining from a balcony on Rodriguez's side of the duplex. He dialed 911 but before he could complete his call the intruders began bashing in the front door of his unit. In an attempt to escape, he ran to the level below his bedroom loft and onto a balcony. He looked down from the balcony, which hung over a steep cliff, and reconsidered his escape route. He ran down the stairs to the ground floor where the front door was located. Before he could find a way to get out, the front door gave way and the Travis County S.W.A.T. team, outfitted in black suits, poured into the foyer and pounced on him. As they were taking him down, one of the officers grabbed for his head and inadvertently ripped out some of his artificially implanted hair. McElroy also sustained several small bruises and cuts to his head. To this point, the S.W.A.T. team failed to identify themselves, but when McElroy, obviously terrified, implored them to identify themselves, they answered with nonresponsive obscenities.

Agents not involved in the take-down of McElroy ran past him toward Griesbach who, awakened by the commotion, had come to the base of the stairs on the ground floor. They tackled and pinned Griesbach in a similar manner, shouting obscenities, grabbing his hair, and holding a gun to his head. He received several bruises and a cut on his left shin. Like McElroy, none of Griesbach's injuries required medical attention.

After the initial siege, McElroy and Griesbach, wearing only boxer shorts, were secured with flexible plastic handcuffs and taken next door to Rodriguez's side of the duplex. The agents seated them on a couch next to Rodriguez and his girlfriend. Griesbach was given a bandage for the cut he sustained on his shin. After questioning McElroy and Griesbach for approximately forty-five minutes, the task force determined they were not involved in the drug-related activities of Rodriguez. The agents then took them back to their unit next door, required them to be photographed, issued a perfunctory, half-hearted apology, and released them. After they were released, no one from [the federal task force] made any follow-up investigation to ensure that both men were not harmed (physically or mentally) or to assess the damages the raid caused to the apartment. . . . The officers showed no contrition for their behavior. Officer Hildreth of the DEA testified they had no regrets for the way they conducted the investigation and raid, notwithstanding the fact that they injured innocent citizens and caused considerable property damage during the raid.(100)

If the offer to amend our collective contract is presented candidly and honestly, the vast majority of Americans will reject it. Americans are wonderfully jealous of their freedom and will not knowingly surrender it. But honesty requires all of us to make a simple admission: freedom has its costs. To secure the right of all citizens to be free from unreasonable searches and seizures, it is necessary to discourage some practices by law enforcement officers that might net a few more convictions.

The exclusionary rule creates a direct incentive for law enforcement to be conducted legally. In the end, society will be safer if the rule is preserved. After all, there are measures that citizens can take to protect their homes and families from criminals. But there can be no protection from a government run amok. Ask Donald Carlson, Steve McElroy, or Fred Griesbach.

Illegal Detentions and the Third Degree

Another provision of the Senate bill would allow all statements extracted from a citizen in federal custody to be used against him in court unless he could prove his own statements to be "involuntary."(101) Combined with the elimination of the exclusionary rule for illegally seized evidence, that provision could encourage nightmarish law enforcement tactics. Under existing law, government agents cannot haul citizens out of their homes at night without evidence of guilt, subject them to the third degree, and then make use in court of statements wrung from them during their illegal detention. The Senate bill would allow just that.

An arrest not supported by probable cause is considered an "unconstitutional seizure" under the Fourth Amendment. On the basis of the Supreme Court's interpretation of the Constitution, the exclusionary rule would prevent use in court of statements taken after such an arrest.(102) The Senate bill, however, would eliminate that protection. The only other legal basis for excluding the statements would be the Fifth Amendment protection against compelled self-incrimination. But under the Senate bill, that protection too would not result in exclusion unless the illegally detained citizen could prove that the statements he gave were involuntary.

Of course, the government would have exclusive control over the conditions of an illegal detention, including who might later serve as a witness, what statements (if any) could be recorded, and whether the detainee would be allowed to call a lawyer (or anyone else). As a practical matter, the government would be in a position to ensure that a detainee would never be able to produce evidence that his statements were coerced. Shifting the burden of proof to the accused to show coercion could insulate government misconduct entirely from challenge.

Mass Arrests and Avoiding the Magistrate

The Senate bill would also enable federal agents to detain and interrogate citizens at the agents' leisure, ignore the legal requirement to bring detainees promptly before a magistrate for a ruling on whether the detention is justified, and still use any of the detainee's statements in a subsequent prosecution. The bill would repeal the long- established McNabb-Mallory rule prohibiting use in federal court of statements taken during an unreasonable delay between arrest and presentment of the detainee to a judicial officer.(103)

The McNabb-Mallory rule was first adopted by the U.S. Supreme Court in 1943. Its inspiration is not hard to fathom. The rule discourages the use of the mass arrests and detentions that were a favorite tool of the totalitarian regimes of Europe. The logic behind the rule is simple and compelling: if federal agents can benefit from extracting statements during an illegal detention while they ignore the detained citizen's right to a prompt judicial ruling on the legality of his arrest, their incentive will be to make mass arrests and use interrogation as the "screening mechanism" for deciding whom to charge and whom to release.(104)

Under present legislation, statements taken in federal detention before the detainee is brought before a magistrate may be used in evidence if obtained within six hours of the arrest, but the Senate bill would eliminate the time limit altogether.(105) The bill raises the specter of interrogation techniques associated with South American juntas being imported into federal law enforcement. Large numbers of citizens for whom there is no evidence of guilt could "disappear" for days or weeks or months--while being held incommunicado with no effort made to seek judicial approval of their detention--until law enforcement officers either decide to charge them or deign to release them.

Such tactics would violate a number of laws, of course, including a federal rule requiring that detainees be brought before a magistrate or judge "without unnecessary delay," the Fourth Amendment requirement that a detention hearing be held no later than 48 hours after arrest, and the Fourth Amendment rule prohibiting arrests without probable cause.(106) But the Senate bill carefully and systematically ensures that evidence will not be excluded, regardless of whether some (or all) of those rules are violated; the safeguards would become empty promises. Any incriminating statements wrung from a citizen during an illegal detention could be used in court unless the detainee could somehow marshal the evidence to prove his own statements "involuntary."

In the same way that arbitrary and random searches could become routine tools of federal law enforcement, so could mass arrests, prolonged detentions, and grueling interrogations. Every now and then, the government might have to pay a few thousand dollars of taxpayer money for illegally seizing an innocent citizen and detaining him for weeks. But damages are conveniently and predictably capped at $10,000 plus out-of-pocket losses, so the tort remedy would not be a budget buster.

Supreme Court Justice Antonin Scalia has described the injustice of a system that would tolerate prolonged detentions without a judicial hearing.

A law-abiding citizen may be compelled to await the grace of a Dickensian bureaucratic machine, . . . never once given the opportunity to show a judge that there is absolutely no reason to hold him, that a mistake has been made. In my view, this is the image of a system of justice that has lost its ancient sense of priority, a system that few Americans would recognize as our own.(107)

In repealing the McNabb-Mallory rule and imposing a presumption that statements taken during illegal detention are voluntary, the Senate bill would encourage the degeneration of law enforcement tactics and let loose the "Dickensian bureaucratic machine."

Restraining the Third Branch by Legislative Fiat

There is a common theme running through the 1995 crime bills: an assault on the power of federal judges, who exert the most significant institutional restraint on government abuses.(108) Already, the federal judiciary has lost some of its prestige and authority as a result of misguided legislation. Federal court used to be a special place where the most important cases of the day were brought for resolution. Now federal judges--whose ranks include many of the finest legal minds in the nation--spend much of their time performing rote processing of a flood of nickel-and-dime drug cases and other "street-level" offenses, herded into the federal domain by a Congress bent on federalizing almost every conceivable transgression. The mounting workload has had its effect. According to federal appellate judge Stephen Reinhardt, "[T]hose who believe we are doing the same quality work that we did in the past are fooling themselves."(109)

The vast majority of the newly federalized criminal cases end in guilty pleas, and the judges' discretion in the most important task remaining--sentencing--has been channeled, narrowed, and restricted almost out of existence by the mandatory minimum sentences and sentencing guidelines of the Sentencing Reform Act of 1984 and subsequent legislation. Under the scheme imposed by Congress, federal judges find their sentencing function reduced to little more than the application of a mathematical formula.(110)

If the 1995 crime bills are enacted intact, the expansion of caseloads and the contraction of judicial authority will drastically accelerate. Judges will lose substantial control over proceedings in their own courts. Criminal defense lawyers will cower at the prospect of an indictment should their written arguments be deemed offensive to federal prosecutors. Given the risk of federal felony charges, defense lawyers may not be willing to submit aggressive legal arguments to assist the court in finding the weaknesses in the prosecution's case. For them, the court's authority will fade into irrelevance, as the prosecutor becomes the ultimate power in court proceedings.

With federal prosecutors exempted from ethical requirements, it is an open question how long judges will be able to command the respect of those who need not obey their rules. Like Soviet procurators, federal prosecutors may come to view judges as little more than a nuisance, to be waved aside whenever they would interfere with the government's pursuit of a conviction, or to be co-opted to give convictions a judicial imprimatur. Who can predict the outcome, if the balance of power in the courtroom is shifted so dramatically?

The provisions on confessions and illegally seized evidence represent nothing less than a challenge to the federal judiciary's power to interpret the scope of constitutional protections--a power first recognized by Chief Justice John Marshall in the most important case in the history of American jurisprudence, Marbury v. Madison, decided in 1803.(111) If the federal courts ultimately rebuff this challenge to their authority, the taxpayers will have to fund years of constitutional litigation in the interim. The cost in lost esteem for the judiciary of such a confrontation with Congress cannot be foreseen. Moreover, the Senate bill replacing the exclusionary rule with a tort remedy would open the doors of federal courts to a massive influx of damage suits, further straining the capacity of the third branch to do its job and assert its authority. And the House bill that would enlist federal judges to tack on mandatory minimum sentences in cases already adjudicated in state court would add another mass of menial tasks to the federal caseload.

The 1995 crime bills threaten to relegate federal judges to the level of bureaucratic functionaries. Those proposals would dictate to the courts when they could consider constitutional claims, how they would be permitted to interpret the law, and what they would be allowed to do when fashioning remedies. While imposing such restrictions on judicial decisionmaking, the proposed legislation would inundate the federal docket with even more low-level criminal litigation, forcing federal courts to adopt assemblyline justice. The recent Lopez decision, rebuffing a congressional attempt to federalize a local crime, gives hope that the federal courts may be ready to fight back. But if its resistance fails, the judiciary may be dislodged from its constitutional status as a co-equal branch of govern- ment, rendered instead an overworked vassal of Congress and the executive.

It is not too much to say that the 1995 crime bills represent a crossroads in the life of the Republic. We can follow the path provided by the Framers, on which the three branches coexist and counterbalance each other, no power goes unchecked, and the government is restrained. Or we can take a new direction, relegating the judiciary to increasing subservience, undermining the citizens' means of self-defense, and unleashing the power of a Congress and executive seemingly eager to subdue civil society under the boot of an ever-expanding federal criminal jurisdiction. If we go the latter route, we will have surely lost our way.

Notes

(1) "Congress is responding to a public encouraged by politicians to believe the myth that the federal government can cure all ills and solve all problems." James Q. Wilson, paraphrased in Damon Darlin, "Collective Lunacy," Forbes, March 15, 1993, p. 96.

(2) United States v. Lopez, 63 U.S.L.W. 4343 (U.S. April 25, 1995), no. 93-1260.

(3) Ibid., p. 4352 (Kennedy, J., concurring).

(4) Quoted in Ibid., p. 4346n. 3.

(5) Ibid., p. 4347.

(6) Todd S. Purdum, "Clinton Seeks Way of Avoiding Ruling on School Gun Ban," New York Times, Sunday, April 30, 1995, p. A1.

(7) Ibid.

(8) Ibid.

(9) Ibid.

(10) On the traditional primacy of the state role in criminal enforcement, see, for example, Yale Kamisar, Wayne LaFave, and Jerold Israel, Modern Criminal Procedure (St. Paul: West, 1990), p. 2.

(11) Janet Novack, "How About a Little Restructuring?" Forbes, March 16, 1993, p. 91. Novack's article provides excellent analysis of the explosive growth of the Justice Department and its effects on the federal budget and American society. It is well worth study by anyone contemplating further funding for the DOJ.

(12) Ibid.

(13) See, for example, "The Outer Edge of the Envelope: Disqualification of White Collar Criminal Defense Attorneys under the Joint Defense Doctrine," Minnesota Law Review 76 (May 1994): 1224.

(14) For a penetrating analysis of the evolution of criminal enforcement of federal environmental laws, see Timothy Lynch, "Polluting Our Principles: Environmental Prosecutions and the Bill of Rights," Cato Institute Policy Analysis no. 223, April 20, 1995. Criminal penalties for willful violations of the Securities Exchange Act are contained in 15 U.S.C., sec. 78ff. On fraud, conversion, and embezzlement of pension monies and false statements, see 18 U.S.C., secs. 664 and 1027. On criminal penalties for the employment of illegal aliens, see 8 U.S.C., sec. 1324a.

(15) Lynch, p. 1.

(16) For a discussion of the political posturing on both sides of the aisle involved in federalizing carjacking and other street crimes, see Novack, p. 92. 18 U.S.C., sec. 922 creates federal criminal jurisdiction over felons in possesion of firearms. It is estimated that 70 percent of federal prisoners in 1995 will be drug offenders; half of them will be first-time offenders. David B. Kopel, "Prison Blues: How America's Foolish Sentencing Policies Endanger Public Safety," Cato Institute Policy Analysis no. 208, May 17, 1994, pp. 7-9. Kopel's paper offers an exceptionally comprehensive, rigorous, and persuasive critique of current U.S. sentencing policy.

(17) See, for example, Leslie J. Hagin, "Legislative Up date," Champion, April 1995, p. 42.

(18) See, for example, William A. Niskanen, "Crime, Police, and Root Causes," Cato Institute Policy Analysis no. 218, November 14, 1994, pp. 3-4.

(19) Ibid.

(20) Ibid.

(21) Quoted in Novack, p. 93.

(22) Ibid., p. 94.

(23) United States v. Mills, 817 F. Supp. 1546 (N.D. Fla. 1993).

(24) United States v. Skarie, 971 F.2d 317 (9th Cir. 1992).

(25) United States v. Smith, 924 F.2d 889, 897 (9th Cir. 1991).

(26) Orrin Hatch, interview with Gary A. Hengstler, ABA Journal, April 1995, p. 73.

(27) For a rigorous critique of the overextension of federal authority in criminal and other areas, see "A Government of Limited Powers," in The Cato Handbook for Congress (Washington: Cato Institute, 1995), pp. 17-35.

(28) Lopez, p. 4347.

(29) Quoted in Kopel, p. 18.

(30) For example, sec. 405 of S.3 imposes a mandatory minimum for drug trafficking, and sec. 407 of S.3 imposes a mandatory minimum for firearms offenses.

(31) Ian Fisher, "Pataki Is Gaining Support on Easing Drug Prison Terms," New York Times, January 30, 1995, p. A1.

(32) H.R. 667.

(33) H.R. 1488. That provision also re-legalizes various assault weapons.

(34) Robert M. Parker and Leslie J. Hagin, "Federal Courts at the Crossroads: Adapt or Lose!" Mississippi College Law Review 14, no. 2, part 1 (April 1994): 228.

(35) Virtually any experienced criminal defense attorney will confirm that federal and state courts are entirely different worlds. A tough and seasoned Kentucky criminal defense lawyer was once heard to say, "I'd rather wrestle five tigers than go to federal court."

(36) See Rule 26.2, Federal Rules of Criminal Procedure.

(37) Based on the author's experience in defending federal white-collar cases, potential witnesses are often very reluctant to provide testimony helpful to the defense for fear of retaliation from the government--especially if they are businesspeople subject to the same regulatory authorities who have initiated the criminal investigation of the defendant.

(38) See, for example, U.S. Sentencing Guidelines, sec. 5k1.1, which authorizes cooperation agreements.

(39) See, for example, Rule 17.03, Minnesota Rules of Criminal Procedure.

(40) See, for example, State v. Stock, 362 N.W.2d 351 (Minn.App. 1985).

(41) United States v. Zafiro, ___ U.S. ___, 113 S.Ct. 933 (1993).

(42) United States v. PHE, Inc., 965 F.2d 848 (10th Cir. 1992).

(43) For a description and critique of the "RICO megatrial," see United States v. Salerno, 937 F.2d 797 (2d Cir. 1991).

(44) United States v. Casamento et al., 887 F.2d 1141 (2d Cir. 1989).

(45) See, for example, United States v. Gonzales, 927 F.2d 139 (3d Cir. 1991).

(46) Charles W. Wolfram, Modern Legal Ethics (St. Paul: West, 1986), p. 651.

(47) John Emerich Edward Dalberg-Acton, letter to Bishop Mandell Creighton, April5, 1887, quoted in Bartlett's Familiar Quotations (Boston: Little, Brown, 1980), p. 615.

(48) See Rule 42, Federal Rules of Criminal Procedure.

(49) Each federal district court has local rules that typically include ethical standards and procedures for sanction ing attorneys who violate them. See, for example, Rule 83.6, Local Rules of the United States District Court for the District of Minnesota.

(50) See, for example, United States v. Lopez, 4 F.3d 1455, 1464 (9th Cir. 1993), where referral of a federal prosecutor to a state disciplinary board is recommended.

(51) See, for example, Wayte v. United States, 470 U.S. 598 (1985), where the nearly unreviewable discretion of prose cutors in determining whether charges should be brought is discussed.

(52) See Glenn Harlan Reynolds, "Kids, Guns, and the Comerce Clause: Is the Court Ready for Constitutional Government?" Cato InstitutePolicy Analysis no. 216, October 10, 1994, p. 12.

(53) The government has already scored an ominous victory in ensuring that such laws will be interpreted in its favor when ambiguous, even when that would result in a citizen's conviction based on a vague law, since federal courts have held that the "rule of lenity"--requiring doubts about the law to be resolved in favor of the accused--does not apply to "regulatory offenses." See Lynch, p. 8.

(54) See ibid., p. 1.

(55) J. Stephen, A History of the Criminal Law of England (1883), vol. 1, pp. 340-41, quoted in Faretta v. California, 422 U.S. 806, 823n. 18 (1975).

(56) Ibid.; see also Leonard W. Levy, Origins of the Fifth Amendment (New York: Macmillan, 1986), p. 271.

(57) Ralph Drury Martin, "Defense Counsel: Targets for the Prosecution," Legal Times, March 20, 1995, p. 27. The facts cited in the text are also based on the author's phone conversation with Martin on April 14, 1995.

(58) United States v. Van Engel, 15 F.3d 623, 629 (7th Cir. 1993).

(59) Matter of Doe, 801 F. Supp. 478, 488 (D.N.M. 1992).

(60) Wolfram, p. 111.

(61) Doe, p. 488.

(62) Wolfram, p. 611.

(63) Ibid., p. 317.

(64) Ibid., p. 641.

(65) Doe, p. 480.

(66) See, for example, "Memorandum from the Attorney General to All Justice Department Litigators," June 8, 1989, reprinted in Doe, p.489

(67) "We agree that in an appropriate case, contact with a represented party could be excepted from the prohibition of [the ethical rule] by court order." Lopez, p. 1461.

(68) "Memorandum from the Attorney General to All Justice Department Litigators."

(69) 28 C.F.R. part 77; see also David S. Rodolf and Thomas K. Maher, "Behind Closed Doors," Champion, November 1994, p. 26.

(70) Doe, p. 480.

(71) Lopez, p. 1458.

(72) Ibid., p.1456-57.

(73) United States v. Van Engel, 15 F.3d 623, 626 (7th Cir. 1993).

(74) United States v. Marshank, 777 F. Supp. 1507, 1530 (N.D. Cal. 1991).

(75) For example, Local Rule 83.6 of the United States District Court for the District of Minnesota adopts ethical rules promulgated by the Minnesota Supreme Court.

(76) S.3, sec. 502.

(77) Hatch, p. 73.

(78) United States v. Kojayan, 8 F.3d 1315, 1320 (9th Cir. 1993).

(79) Barry Tarlow, "RICO Report," Champion, December 1993, p. 21, quoting in part Federal Prosecutorial Authority in a Changing Legal Environment--More Attention Required: Hear ings before the House Committee on Government Operations, 33d Report of the Committee on Government Operations, 101st Cong., 2d sess., November 27, 1990, p. 25.

(80) Eva M. Rodriguez, "Prosecutor Fights Fire with Fire," Legal Times, April 10, 1995, p. 1.

(81) Doe, p. 479.

(82) H.R. 666 and S.3, sec. 507.

(83) The increasing militarization and violence of federal law enforcement is noted in "Civil Liberties and Criminal Law," in The Cato Handbook for Congress, pp. 135-44.

(84) Henry Hyde, Forfeiting Our Property Rights: Is Your Property Safe from Seizure? (Washington: Cato Institute, 1995), pp. 29-33.

(85) Ibid., pp. 33-34.

(86) Gideon Kanner, "Never Mind, 'Only' Property Rights Were Violated," Wall Street Journal, August 25, 1993, p. A9.

(87) In Weeks v. United States, 232 U.S. 383 (1914), the Court found that the Fourth Amendment requires unconstitutionally seized evidence to be excluded in federal prosecutions.

(88) The exclusionary rule precludes the government from using illegally seized evidence to prove the defendant guilty in its "case in chief," but if the defendant takes the witness stand and gives testimony that would be rebutted by the illegally seized evidence, its admission will be allowed to rebut or "impeach" the testimony. United States v. Havens, 446 U.S. 620 (1980).

(89) Comptroller of the United States, Impact of the Exclusionary Rule on Federal Criminal Prosecutions, 1979, pp. 9-11, cited in United States v. Leon, 468 U.S. 897, 950n. 11 (1984) (Brennan, J. dissenting).

(90) See, for example, Illinois v. Gates, 462 U.S. 213 (1983).

(91) On stop-and-frisk searches, see Terry v. Ohio, 392 U.S. 1 (1968). On inventory searches, see Colorado v. Bertine, 479 U.S. 367 (1987). On regulatory searches, see New York v. Burger, 482 U.S. 691 (1987).

(92) S.3, sec. 507.

(93) Kenneth Jost, "Exclusionary Rule Reforms Advance," ABA Journal, May 1995, p. 18.

(94) Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 1999 (1971).

(95) S.3, sec. 507, proposed change to 18 U.S.C., sec. 2694. Emphasis added.

(96) 367 U.S. 120 (1961).

(97) Ibid.

(98) "The fourth amendment is not a 'just compensation' clause. It doesn't say that unreasonable searches and seizures may take place if just compensation is made. It is an absolute prohibition on such searches." Richard Epstein, professor at the University of Chicago School of Law, quoted in Charles Oliver, "What's a Reasonable Search?" Investors Business Daily, January 19, 1995, p. 2.

(99) The Fifth Amendment to the U.S. Constitution provides that private property shall not "be taken for a public use without just compensation."

(100) McElroy v. United States, 861 F. Supp. 585, 588-89, 589n. 2 (W.D. Tex. 1994). McElroy and Griesbach sued the government for their injuries and trauma. Astonishingly, after seeming to criticize the government's conduct, the judge held that the government was not liable for their injuries and even made Griesbach and McElroy pay the goernment's costs in defending against their action, reasoning that the officers could have reasonably believed that they were dealers because they lived next door to a dealer, and that "while the officers' method of apprehending McElroy and Griesbach may appear brutal, nothing in the evidence indicates they acted in bad faith or beyond the discretion delegated to police officers under these circumstances." Ibid., p. 595.

(101) To exclude his confession from evidence, sec. 507(a)(1) of the Senate bill would place on the detainee the burden of proof to demonstrate that his statements were involuntary instead of requiring the government to prove the statements voluntary to establish their admissibility.

(102) Dunaway v. New York, 442 U.S. 200 (1979).

(103) See McNabb v. United States, 318 U.S. 332 (1943); and Mallory v. United States, 354 U.S. 449 (1957).

(104) "It is not the function of the police to arrest, as it were, at large and to use an interrogating process at police headquarters in order to determine whom they should charge before a committing magistrate on 'probable cause.'" Ibid., p. 456.

(105) Present legislation is found in 18 U.S.C. sec. 3501(c). Sec. 507(a)(2) of the Senate bill would amend 18 U.S.C. sec. 3501(c) "by striking 'and if such confession' and all that follows through the end of the subsection." The language it would strike essentially codifies the Mc- Nabb-Mallory rule, while giving federal agents six hours to get a detainee in front of a magistrate; the amendment would eliminate any reference to a time limit and thus allow unlimited delays before a hearing. It takes very careful scrutiny of both the bill and the U.S. Code to detect the significant change in law that this provision would effect.

(106) "Without unnecessary delay" is found in Rule 5(a), Federal Rules of Criminal Procedure. The 48-hour stipulation is in County of Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct. 1661 (1991). Under existing law, statements that are the product of an illegal arrest cannot be used in the prosecution's case in chief. Dunaway v. New York, 442 U.S. 200 (1979). Of course, the provision in the Senate bill eliminating the exclusionary rule would void that rule. (107) McLaughlin, 500 U.S. 71, 111 S.Ct. 1677 (Scalia, J., dissenting).

(108) Leslie Hagin, an expert on constitutional law and judicial administration who currently serves as legislative director of the National Association of Criminal Defense Lawyers, has provided the author with invaluable insights on this subject.

(109) Quoted in Parker and Hagin, p. 212.

(110) For a thorough and compelling critique of mandatory minimums and the guidelines system, see Kopel, pp. 9-19.

(111) 1 Cranch 137, 2 L.Ed. 60 (1803).

1995 The Cato Institute
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